A Supreme Court blow to anti-death penalty icon Mumia Abu-Jamal

The Supreme Court on Tuesday reversed an appeals court ruling that would have given Mumia Abu-Jamal a chance to avoid the dealth penalty. Some opponents of capital punishment have championed Abu-Jamal's case.

In a summary order issued on Tuesday, the high court reversed a 2008 federal appeals court ruling that had required a new sentencing hearing for Mr. Abu-Jamal.

The Supreme Court action sends the case back to the Third US Circuit Court of Appeals in Philadelphia to reconsider the issue in light of a similar decision handed down last week by the high court. In that case, with similar facts, the justices voted 9 to 0 to reverse an order that struck down the death sentence.

Abu-Jamal’s writings about his legal plight have attracted widespread attention among human rights activists and capital punishment opponents in the US and Europe. He has maintained that the police coerced witnesses to testify against him and that racial prejudice and discrimination played a role in his death sentence.

This week, supporters began circulating a petition to President Obama and Attorney General Eric Holder calling for an investigation into the “long history of civil rights and constitutional violations in this case.”

The case against Abu-Jamal

The case stems from a December 1981 traffic stop in which Philadelphia police officer Daniel Faulkner pulled over a car driven by Abu-Jamal’s brother, William Cook. Abu-Jamal was a passenger in the car. A struggle broke out between Mr. Cook and Officer Faulkner.

According to witnesses, as the struggle continued Abu-Jamal ran back toward the car from a parking lot across the street and shot Faulkner in the back. The officer fell to the ground and returned fire, striking Abu-Jamal in the chest. Abu-Jamal then allegedly walked toward the officer, stood over him, and fired four more shots at close range. One shot struck Faulkner between the eyes.

He was convicted and sentenced to death. The jury found one aggravating factor – killing a police officer who was acting in the line of duty. The jury considered one mitigating factor, Abu-Jamal’s lack of a significant criminal record.

It is the sentencing phase of the trial that was under consideration in the appeal to the Supreme Court.

Confusion in sentencing?

Both a federal judge and a federal appeals court had ruled that the jury that sentenced Abu-Jamal to death might have been confused over how to properly assess mitigating evidence during the penalty phase of the trial.

At issue was whether jurors might have thought that they had to unanimously agree on each piece of mitigating evidence being weighed against the aggravating circumstances justifying a death sentence.

There is no unanimity requirement for jurors considering mitigating circumstances. They are free to consider anything that might weigh against a death sentence.

In contrast, all jurors must agree on any aggravating factors. In addition, jurors must unanimously decide that the prosecution has proved beyond a reasonable doubt that those aggravating factors outweigh any mitigating circumstances.

The 'Mills standard'

In some cases jurors have been given faulty instructions by the trial judge that jurors must unanimously agree on the mitigating factors. Such instructions are inaccurate and unconstitutional under a 1988 Supreme Court decision called Mills v. Maryland.

In the Mills case the high court ruled that a defendant must receive a new sentencing hearing whenever there is a “substantial possibility that reasonable jurors … well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed.”

In the Abu-Jamal case, the federal appeals court ruled that Abu-Jamal should either receive a new sentencing hearing or have his death sentence be changed to a life sentence.

Last Tuesday, the high court decided a similar case, Smith v. Spisak. The case was like Abu-Jamal’s in that a state court had upheld the jury instructions and verdict form, but a federal appeals court overturned that ruling after concluding that there was a violation of the Mills standard.

Supreme Court's decision

In the Spisak case, the high court reversed the federal appeals court in a decision that will make it harder in future cases to argue possible juror confusion short of a judge actually giving the wrong instructions to the jury.

“The instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously,” Justice Stephen Breyer wrote in the majority opinion last week. “Neither the instructions nor the forms said anything about how – or even whether – the jury should make individual determinations that each particular mitigating circumstance existed.”

Justice Breyer added: “In our view the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the circumstances that Mills found critical.”

It will now be up to the Third Circuit to apply this new, tougher test to the facts of Abu-Jamal’s case.